Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive. B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing: (i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that: (a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and (b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease. (ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession. (iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that: (a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and (b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges. (c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments. (d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings. (iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property. (v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease. (vi) For purposes of this Section 20.B, Landlord and Tenant acknowledges that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean: (a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease. (b) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above. C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events. D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing: (a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease; (b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and (c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment. E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges. X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent. G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Samples: Lease Agreement (Improvenet Inc)
Insolvency or Bankruptcy. A. In If the event that Tenant shall become a debtor under Chapter 7, 11 or 13 surety on any of the Bankruptcy above-mentioned bonds pertaining to Developer’s Phase 1A Infrastructure Improvements is declared bankrupt, becomes insolvent (as defined in Insurance Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"Section 985), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee right to do business is terminated in the State of California, Developer shall, within fifteen (15) Business Days after Developer’s actual knowledge or receipt of notice from the Authority, substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent a replacement bond is commercially available. If the surety on any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation above-mentioned bonds pertaining to Tenant the Convention Center is declared bankrupt, becomes insolvent (as defined in Insurance Code Section 985), or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's its right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable do business is terminated in the context State of a bankruptcy proceeding California, Developer shall within fifteen (15) Business Days after Developer’s actual knowledge or receipt of Tenantnotice from the Authority substitute or require the substitution of another bond and surety, have been satisfiedreasonably acceptable to the Authority, and Xxxxxxxx has so acknowledged in writing:
to the extent (i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
a replacement bond is commercially available and (ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance cost of such replacement bond does not exceed one hundred ten percent (110%) of the portion of the cost of the original bond that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent is fairly allocable to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance portion of the future performance (as defined below) of each of Tenant's Convention Center that has not then been completed. The Parties acknowledge that the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise bonds required by Section 13.1 must be in place throughout the terms period of this Leasetime required by Section 13.1 and, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.B, Landlord and Tenant acknowledges thatthat end, in the context event replacement bonds are needed for the reasons described in the immediately preceding sentence but the thresholds set forth in clauses (i) and (ii) of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean:
(a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenantimmediately preceding sentence are not met, the Trustee Parties shall meet and confer to determine how the Parties can replace the subject bonds or Debtor-in-Possession, acceptable as potentially obtain an alternative form of security; provided that Developer shall not be required to value and kind to Landlord, to secure to Landlord obtain any such replacement bond or alternative security unless the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, thenParties mutually agree, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after no event shall the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant cost to the terms and provisions Developer of 20.A and 20.B hereof, for any replacement bond or alternative security exceed the purpose of assigning cost threshold set forth in clause (or elects to assignii) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignmentimmediately preceding sentence.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Samples: Project Implementation Agreement
Insolvency or Bankruptcy. A. In If the event that Tenant shall become a debtor under Chapter 7, 11 or 13 surety on any of the Bankruptcy above-mentioned bonds pertaining to Developer’s Phase 1A Infrastructure Improvements is declared bankrupt, becomes insolvent (as defined in Insurance Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"Section 985), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee right to do business is terminated in the State of California, Developer shall, within fifteen (15) Business Days after Developer’s actual knowledge or receipt of notice from the Authority, substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent a replacement bond is commercially available. If the surety on any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation above-mentioned bonds pertaining to Tenant the Convention Center is declared bankrupt, becomes insolvent (as defined in Insurance Code Section 985), or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's its right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable do business is terminated in the context State of a bankruptcy proceeding California, Developer shall within fifteen (15) Business Days after Developer’s actual knowledge or receipt of Tenantnotice from the Authority substitute or require the substitution of another bond and surety, have been satisfiedreasonably acceptable to the Authority, and Xxxxxxxx has so acknowledged in writing:
to the extent (i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
a replacement bond is commercially available and (ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance cost of such replacement bond does not exceed one hundred ten percent (110%) of the portion of the cost of the original bond that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent is fairly allocable to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance portion of the future performance (as defined below) of each of Tenant's Convention Center that has not then been completed. The Parties acknowledge that the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise bonds required by Section 13.1 must be in place throughout the terms period of this Leasetime required by Section 13.1 and, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.B, Landlord and Tenant acknowledges thatthat end, in the context event replacement bonds are needed for the reasons described in the immediately preceding sentence but the thresholds set forth in clauses (i) and (ii) of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean:
(a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenantimmediately preceding sentence are not met, the Trustee Parties shall meet and confer to determine how the Parties can replace the subject bonds or Debtor-in-Possession, acceptable as potentially obtain an alternative form of security; provided that RIDA shall not be required to value and kind to Landlord, to secure to Landlord obtain any such replacement bond or alternative security unless the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, thenParties mutually agree, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after no event shall the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant cost to the terms and provisions Developer of 20.A and 20.B hereof, for any replacement bond or alternative security exceed the purpose of assigning cost threshold set forth in clause (or elects to assignii) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignmentimmediately preceding sentence.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Samples: Project Implementation Agreement
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("“Debtor"”) and the trustee ("“Trustee"”) or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B 20.B. and 20.D 20.D, hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx Tenant agrees that should Tenant, as debtor-in-possession ("“Debtor-in-Possession"”) or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("“Tenant's ’s Petition"”), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the this Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the this Lease. Landlord shall be entitled to at least thirty (30) days days’ prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's Landlord’s right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx Landlord has so acknowledged in writing:
(i1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's ’s written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's ’s, the Trustee's ’s or Debtor-in-Possession's ’s obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- in-Possession shall also pay in advance one-twelfth (1/12'1/12th) of Tenant's ’s annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter after the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent Base Rent an amount equal to the sum of the minimum rent Base Rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's ’s Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv4) The assumption of the this Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v5) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' ’ prior written notice of any proceeding concerning the assumption of this Lease.
(vi6) For purposes of this Section 20.B20.B., Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance" ” shall mean:
(a1) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b2) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B 20.B. hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's ’s Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of Sections 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's ’s interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D 20.D. of future performance of all of the terms, covenants and conditions of this Lease to be performed by XxxxxxTenant. For purposes of this Section 20.D20.D., Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance of future performance" ” shall mean that each of the following conditions have been satisfied, and Xxxxxxxx Landlord has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's ’s obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's ’s standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's F. Neither Tenant’s interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's ’s consent, or Landlord’s right to terminate this Lease for any transfer of Tenant's ’s interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's ’s obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian custodian, receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's ’s or such guarantor's ’s insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's ’s or such guarantor's ’s property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 7 of the Federal Bankruptcy Code ("Code") or a petition for reorganization or adjustment of debts is filed concerning a petition for reorganization or adjustment of debts if filed concerning Tenant under Chapters 11 or 13 of the Bankruptcy Code ("or a proceeding is filed under Chapter 7 and is transferred to Chapters 11 or 13, the Trustee or Tenant, as Debtor") and the trustee ("Trustee") or Tenant shall -in Possession may not elect to assume this Lease for unless, at the purpose time of assigning such assumption, the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If TenantTrustee, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writinghas:
(i) The Trustee Cured or the Debtor-in-Possession has cured, or has provided Landlord "adequate assurance assurance" (as defined below) that:
(a) Within ten (10) days from the date of such assumption assumption, the Trustee or Debtor-In-Possession will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption assumption, the Trustee or Debtor-in-Possession will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.BSection, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding proceedings of Tenant, at a minimum "adequate assurance" shall mean:
(a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease., and to keep the Premises stocked with merchandise and properly staffed with sufficient employees to conduct a fully-operational, actively promoted business in the Premises; and
(b) The Bankruptcy Court shall have entered an order Order segregating sufficient cash payable to Landlord, Landlord and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-in Possession, acceptable as to value and kind to Landlord, Landlord to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, Possession to cure the monetary and/or non-monetary defaults under this Lease within with the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. . If the Trustee or Debtor-in-Possession has assumed this the Lease pursuant to the terms and provisions of 20.A and 20.B hereof, this Section for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, hereunder to any other personperson or entity, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that after the intended Trustee, Debtor-in-Possession or the proposed assignee has provided adequate assurance as defined in this Section 20.D of future performance of have complied with all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.DLease, with Landlord and Tenant acknowledge thatacknowledging that such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. . When, pursuant to the Bankruptcy Codecode, the Trustee or Debtor-inIn-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined payable by Tenant hereunder, or in the event Tenant has ceased doing business in the Premises, the reasonable use and occupancy charge shall be equal to the then reasonable rental value of the Premises. The rights, remedies and liabilities of Landlord and Tenant set forth in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest Section shall be in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass addition to any trustee, receiver, assignee for the benefit of creditorsthose which may now or hereafter be accorded, or any other person or entityimposed upon, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of and Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that (a) If Tenant shall become becomes a debtor under Chapter 7, 11 or 13 7 of the Bankruptcy Code ("DebtorCode") ), or if a petition for reorganization or adjustment of debts is filed concerning Tenant under Chapters 11 or 13 of the Code, or a proceeding is filed under Chapter 7 of the Code and is transferred to Chapters 11 or 13 of the trustee ("Trustee") Code, the Trustee or Tenant shall Tenant, and as debtor-in-possession, may not elect to assume this Lease for unless, at the purpose time of assigning the same or otherwisesuch assumption, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writinghas:
(i) The Trustee or cured all defaults under the Debtor-in-Possession has curedLease and paid all sums due and owing under the Lease, or has provided Landlord with "adequate assurance assurance" (as defined below) that:
that (a1) Within within ten (10) days from the date of such assumption assumption, the Trustee or Tenant will cure completely pay all monetary defaults sums due and owing under this Lease and compensate Landlord for any actual pecuniary loss resulting from any existing defaults or breach of this Lease; and, including, without limitation, Landlord's reasonable costs, expenses, accrued interest, and attorney fees and costs incurred as a result of the default or breach and/or as a result of the filing of the petition in bankruptcy;
(bii) Within thirty within twenty (3020) days from the date of such assumption assumption, the Trustee or Tenant will cure all non-monetary defaults and breaches under this the Lease, or if the nature of such non-monetary defaults is such that more than twenty (20) days are reasonably required for such cure that the Trustee or Tenant will commence to cure such non-monetary defaults within twenty (20) days and thereafter diligently prosecute such cure to completion; and
(iii) the assumption will be subject to all of the provisions of the Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.Bparagraph, Landlord and Tenant acknowledges that, acknowledge that in the context of a bankruptcy proceeding of involving Tenant, at a minimum minimum, "adequate assurance" shall mean:
mean (ai) The that Trustee or the Debtor-in-Possession Tenant has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
; (bii) The the Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, Landlord and/or the Trustee or Debtor-in-Possession Tenant shall have granted a valid and perfected first lien and security interest and/or mortgage in or on the property of Tenant, the Trustee or Debtor-in-Possession, Tenant acceptable as to value and kind to Landlord, Landlord to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, Tenant to cure the monetary and/or non-monetary defaults and breaches under this Lease within the time periods period set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, ; and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30iii) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at the very minimum, shall deposit a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
sum equal to two (a2) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined months Base Rent to be sufficient held by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.any
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of the Landlord to continue servicing the mortgage on the Building Premises that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelledcanceled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c20.B(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- in-Possession shall also pay in advance one-twelfth (1/12'1/12TH) of Tenant's annual obligations under this Lease for Property Operating Costs, Taxes, insurance and similar charges.
(c) From and alter after the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv4) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v5) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi6) For purposes of this Section 20.B, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean:
(a1) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b2) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For the purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context contest of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's consent, or Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("“Debtor"”) and the trustee ("“Trustee"”) or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("“Debtor-in-Possession"”) or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("“Tenant's ’s Petition"”), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's ’s right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's Xxxxxxxx’s written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's ’s the Trustee's ’s or Debtor-in-Possession's ’s obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c20.B,(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- in-Possession shall also pay in advance one-twelfth (1/12'1/12th) of Tenant's ’s annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter after the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's ’s Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv4) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v5) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' ’ prior written notice of any proceeding concerning the assumption of this Lease.
(vi6) For purposes of this Section 20.B, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance" ” shall mean:
(a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-in- Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's ’s Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's ’s interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D 20. D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D20. D, Landlord Xxxxxxxx and Tenant acknowledge that, in the context contest of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance of future performance" ” shall mean that each of the following conditions have been satisfied, and Xxxxxxxx Landlord has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's ’s obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's ’s standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's F. Neither Tenant’s interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's ’s consent, or Landlord’s right to terminate this Lease for any transfer of Tenant's ’s interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's ’s obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's ’s or such guarantor's ’s insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's ’s or such guarantor's ’s property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 7 of the Federal Bankruptcy Code (“Code”) or a petition for reorganization or adjustment of debts is filed concerning a petition for reorganization or adjustment of debts is filed concerning Tenant under Chapters 11 or 13 of the Bankruptcy Code ("Debtor") or a proceeding is filed under Chapter 7 and the trustee ("Trustee") is converted to a proceeding under Chapter 11 or Tenant shall elect to assume 13, provided this Lease for is in default (other than of a provision relating to the purpose of assigning the same insolvency or otherwise, such election and assignment may only be made if all financial condition of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm the Trustee or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-PossessionPossession may not elect to assume this Lease unless, or at the Trustee abandons the Premisestime of such assumption, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from TenantTrustee, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writinghas:
(i) The Trustee Cured or the Debtor-in-Possession has cured, or has provided Landlord “adequate assurance assurance” (as defined below) that:
(a) Within ten within sixty (1060) days from the date of such assumption assumption, the Trustee or Debtor-In-Possession will cure all monetary defaults under this Lease; and
(b) Within thirty ninety (3090) days from the date of such assumption assumption, the Trustee or Debtor-in-Possession will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.BSection, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding proceedings of Tenant, at a minimum "“adequate assurance" ” shall mean:
(a) The mean the Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
, and to keep the Premises stocked with merchandise and properly staffed with sufficient employees to conduct a fully-operational, actively promoted business in the Premises. Landlord and Tenant expressly agree that (bi) The Bankruptcy Court shall and (ii) above are inapplicable in their entirety if Tenant has not defaulted on this Lease prior to the filing of any petition and further, that such default must have entered an order segregating sufficient cash payable been one other than related to Landlord, and/or the Trustee insolvency or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property financial condition of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. . If the Trustee or Debtor-in-Possession has assumed this the Lease pursuant to the terms and provisions of 20.A and 20.B hereof, this Section for the purpose of assigning (or elects to assign) Tenant's ’s interest under this Lease or the estate created thereby, hereunder to any other personperson or entity, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that after the intended Trustee, Debtor-in-Possession or the proposed assignee has provided adequate assurance as defined in this Section 20.D of future performance of have complied with all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes Article IV of this Section 20.DLease, with Landlord and Tenant acknowledge thatacknowledging that such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. . When, pursuant to the Bankruptcy Codecode, the Debtor in Possession or Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined payable by Tenant hereunder. The rights, remedies and liabilities of Landlord and Tenant set forth in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest Section shall be in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass addition to any trustee, receiver, assignee for the benefit of creditorsthose which may now or hereafter be accorded, or any other person or entityimposed upon, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of and Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Samples: Lease Agreement (Revcare Inc)
Insolvency or Bankruptcy. A. (i) In the event that a petition for reorganization or adjustment of debts is filed concerning Tenant shall become a debtor under Chapter 7, Chapters 11 or 13 of the United States Bankruptcy Code ("Debtor") and Code, the trustee ("Trustee") Trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled Possession may not elect to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and assume this Lease shall be cancelledunless, but Xxxxxxxx's right to be compensated for damages in at the time of such liquidation proceeding shall survive.
B. No election by assumption, the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance "Adequate Assurance" (as defined below) that the Tenant, Trustee or Debtor-in-Possession, as applicable, is fully capable of strict compliance with all obligations under the Lease for the remainder of the Lease Term of this Lease and has cured or provided Landlord Adequate Assurance that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within within thirty (30) days from the date of such assumption assumption, the Trustee or Debtor-In-Possession will cure all monetary defaults under this Lease including all attorneys' fees as provided by this Lease; and
(b) within thirty (30) days from the date of such assumption, the Trustee or Debtor-in-Possession will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal has assumed the Lease pursuant to the sum provisions of this Article for the minimum rent otherwise payable hereunder, within purpose of assigning Xxxxxx's interest hereunder (or assumes the five (5) year period prior Lease pursuant to the date provisions of Tenant's Petitionthis Article and later proposes to assign the Lease) to any other person or entity, which amount shall such interest may be payable in advance in equal monthly installments.
(d) The obligations imposed upon assigned only after the Trustee or Trustee, Debtor-in-Possession shall continue and the proposed assignee have complied with respect (and the proposed assignee has provided Adequate Assurance to Tenant or any the Landlord that such proposed assignee is fully capable of strict compliance throughout the Lease Term with) all of the terms, covenants and conditions of this Lease after and have provided the completion Landlord with adequate assurances as defined in the Code that such assignment will not disrupt or deviate substantially the existing use of the Land, with Landlord and Tenant acknowledging that such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceedingsproceeding of Tenant.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(viiii) For purposes of this Section 20.BArticle, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assuranceAdequate Assurance" shall mean:
(a) The the Trustee or the Debtor-in-Possession has and proposed assignee have and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession and proposed assignee will have sufficient funds to fulfill the obligations of Tenant under this Lease., and to keep the Leased Premises properly staffed with sufficient employees to conduct a fully-operational, actively promoted business in the Leased Premises; and
(b) The Bankruptcy Court the applicable bankruptcy court shall have entered an order segregating sufficient cash payable to Landlord, and/or and the Trustee or Debtor-in-Possession or the proposed assignee (as applicable) shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Trustee, the Debtor-in-PossessionPossession or the proposed assignee (as applicable), acceptable as to value and kind to Landlord, Landlord to secure to Landlord the obligation of the Trustee or Trustee, the Debtor-in-Possession, Possession or the proposed assignee (as applicable) to cure the monetary and/or non-monetary defaults under this Lease within with the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30iv) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Leased Premises or any portion thereof, such charges shall not be less than the minimum rent as defined payable by Tenant hereunder, or in the event Tenant has ceased doing business in the Leased Premises, the reasonable use and occupancy charges shall be equal to the then reasonable rental value of the Leased Premises. The rights and remedies of the Landlord and the liabilities and obligations of Tenant set forth in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest shall be in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass addition to any trustee, receiver, assignee for the benefit of creditorsthose which may now or hereafter be accorded, or any other person or entityimposed upon, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of and/or Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Samples: Ground Lease
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- in-Possession shall also pay in advance one-twelfth (1/12'1/12th) of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter after the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv4) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v5) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi6) For purposes of this Section 20.B, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean:
(a1) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b2) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context contest of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's consent, or Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. (a) In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("“Debtor"”) and the trustee ("“Trustee"”) or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B 34(b) and 20.D 34(d) hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx Tenant agrees that should Tenant, as debtor-in-possession ("“Debtor-in-Possession") ”), or any Trustee appointed for Tenant, Tenant fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("“Tenant's ’s Petition"”), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's Landlord’s right to be compensated for damages in such liquidation proceeding shall survive.
B. (b) No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of or Tenant, have been satisfied, and Xxxxxxxx Landlord has so acknowledged in writing:
(i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(aA) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(bB) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's ’s written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's ’s the Trustee's ’s or Debtor-in-Possession's ’s obligations under this Lease, provided, however, that:
(aA) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(cSubsection (iii)(C) below) and other monetary charges accruing under this Lease; and
(bB) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- in-Possession shall also pay in advance one-twelfth (1/12'1/12th) of Tenant's ’s annual obligations under this Lease for Operating CostsExpenses, Taxes, insurance and similar charges.
(cC) From and alter after the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's ’s Petition, which amount shall be payable in advance in equal monthly installments.
(dD) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the PropertyBuilding.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' ’ prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.B34(b), Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance" ” shall mean:
(aA) The Trustee or of the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(bB) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possessionin -Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
C. (c) In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B 34(b) hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's ’s Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, option terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. (d) If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A 34(a) and 20.B 34(b) hereof, for the purpose of assigning (or elects to assign) Tenant's ’s interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D 34(d) of future performance of all of the terms, covenants and conditions of this Lease to be performed by XxxxxxTenant. For purposes of this Section 20.D34(d), Landlord and Tenant acknowledge that, in the context contest of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance of future performance" ” shall mean that each of the following conditions have been satisfied, and Xxxxxxxx Landlord has so acknowledged in writing:
(ai) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's ’s obligations under this Lease;
(bii) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's ’s standards of creditworthiness; and
(ciii) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. (e) When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating CostsExpenses, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's (f) Neither Tenant’s interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's ’s consent, or Landlord’s right to terminate this Lease for any transfer of Tenant's ’s interest under this Lease without such consent.
G. (g) In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's ’s obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's ’s or such guarantor's ’s insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's ’s or such guarantor's ’s property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 7 of the Federal Bankruptcy Code ("Code") or a petition for reorganization or adjustment of debts is filed concerning a petition for reorganization or adjustment of debts if filed concerning Tenant under Chapters 11 or 13 of the Bankruptcy Code ("Debtor") or a proceeding is filed under Chapter 7 and is transferred to Chapters 11 or 13, the trustee ("Trustee") Trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-PossessionPossession may not elect to assume this Lease unless, or at the Trustee abandons the Premisestime of such assumption, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from TenantTrustee, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writinghas:
(i) The Trustee Cured or the Debtor-in-Possession has cured, or has provided Landlord "adequate assurance assurance" (as defined below) that:
(a) Within within ten (10) days from the date of such assumption assumption, the Trustee or Debtor-In-Possession will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption assumption, the Trustee or Debtor-in-Possession will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in- Possession.
(iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' prior written notice of any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.BSection, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding proceedings of Tenant, at a minimum "adequate assurance" shall mean:
(a) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease., and to keep the Premises stocked with merchandise and properly staffed with sufficient employees to conduct a fully-operational, actively promoted business in the Premises; and
(b) The Bankruptcy Court shall have entered an order Order segregating sufficient cash payable to Landlord, Landlord and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, Landlord to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, Possession to cure the monetary and/or non-monetary defaults under this Lease within with the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. . If the Trustee or Debtor-in-Possession has assumed this the Lease pursuant to the terms and provisions of 20.A and 20.B hereof, this Section for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, hereunder to any other personperson or entity, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that after the intended Trustee, Debtor-in-Possession or the proposed assignee has provided adequate assurance as defined in this Section 20.D of future performance of have complied with all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.DLease, with Landlord and Tenant acknowledge thatacknowledging that such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. . When, pursuant to the Bankruptcy Codecode, the Trustee or Debtor-inIn-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined payable by Tenant hereunder, or in the event Tenant has ceased doing business in the Premises, the reasonable use and occupancy charge shall be equal to the then reasonable rental value of the Premises. The rights, remedies and liabilities of Landlord and Tenant set forth in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest Section shall be in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass addition to any trustee, receiver, assignee for the benefit of creditorsthose which may now or hereafter be accorded, or any other person or entityimposed upon, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent.
G. In the event the estate of and Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he appointed under state law by reason of Tenant's or such guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or such guarantor's property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
Appears in 1 contract
Insolvency or Bankruptcy. A. In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("“Debtor"”) and the trustee ("“Trustee"”) or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees that should Tenant, as debtor-in-possession ("“Debtor-in-Possession"”) or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("“Tenant's ’s Petition"”), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Xxxxxxxx's ’s right to be compensated for damages in such liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease, provided, however, that the Trustee shall have such longer period not exceeding ninety (90) days from the date of such assumption as shall be reasonably necessary if such default cannot be cured within thirty (30) days.
(ii2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated, for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's ’s written statement of pecuniary loss sent to the Trustee or Debtor-in- in-Possession.
(iii3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of Tenant's ’s the Trustee's ’s or Debtor-in-Possession's ’s obligations under this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three two (32) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c) below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth (1/12') of Tenant's annual obligations under this Lease for Operating Costs, Taxes, insurance and similar chargesDeleted.
(c) From and alter the date of the assumption of this Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the minimum rent otherwise payable hereunder, within the five (5) year period prior to the date of Tenant's Petition, which amount shall be payable in advance in equal monthly installmentsDeleted.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(iv4) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Property.
(v5) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least forty-five (45) days' ’ prior written notice of any proceeding concerning the assumption of this Lease.
(vi6) For purposes of this Section 20.B, Landlord and Tenant acknowledges acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance" ” shall mean:
(a1) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(b2) The Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth aboveDeleted.
C. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section 20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's ’s Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of assigning (or elects to assign) Tenant's ’s interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 20.D of future performance of all of the terms, covenants and conditions of this Lease to be performed by Xxxxxx. For purposes of this Section 20.D, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "“adequate assurance of future performance" ” shall mean that each of the following conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be reasonably sufficient by Landlord to assure the future performance by such assignee of Tenant's ’s obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance reasonably satisfactory to Landlord from one or more persons who satisfy Landlord's ’s standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for the payment of Operating Costs, Taxes, insurance and similar charges.
X. Xxxxxxx Xxxxxx's F. Neither Tenant’s interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law, unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's ’s consent, or Landlord’s right to terminate this Lease for any transfer of Tenant's ’s interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or any guarantor of Tenant's ’s obligations shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against such guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a custodian receiver or Trustee of the property of Tenant or such guarantor shall he be appointed under state law by reason of Tenant's ’s or such guarantor's ’s insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's ’s or such guarantor's ’s property for the benefit of creditors under state law; then and in any such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event.
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